Movement to Opt-Out of Standardized Testing Bolstered By Judge’s Ruling

He might get a chance to pay more attention to homework rather than testing. (Chris Yarzab)

A Leon County judge Friday declined to immediately order that students in a potentially precedent-setting lawsuit be promoted from third to fourth grade, but her rejection of several state arguments could fuel a movement that seeks to allow children to “opt out” of a standardized test.

In a 50-page ruling, Circuit Judge Karen Gievers turned down a request from parents for an injunction against five districts that held students back in the third grade after they refused to answer questions on the Florida Standards Assessment. She ordered a sixth district, Hernando County, to offer an alternative route for students to qualify for the fourth grade, but the ruling doesn’t explicitly say students in the lawsuit must be promoted.

In many ways, though, elements of Gievers’ ruling could be seen as a clear-cut defeat for the Florida Department of Education and at least some of the school districts. In addition to Hernando County, the judge was particularly scalding toward the state education agency and Orange County.

Also, Gievers found that students who fill out their names on the Florida Standards Assessment, break the seal on the test and then refuse to answer questions have “minimally participated” — as parents contend. The state rejected that interpretation, saying that students have to at least answer one question to be considered to have participated.

“Whether the statewide defendants decide that at least one question must have been answered for the defendants to score the test … is irrelevant. By being present, by breaking the seal and putting their names on the test packet, the students did participate in the test,” Gievers wrote.

A spokeswoman for the Florida Department of Education said the agency is reviewing the ruling.

The ruling could provide new oxygen to the “opt-out” movement, which has argued that under state law, parents have the right to tell their children to minimally participate in the test and then ask for the students to be promoted to fourth grade based on a “portfolio.”

The Florida Department of Education and the school districts say that while the law spells out ways to advance that don’t require passing the assessment, it doesn’t give students the opportunity to completely refuse to take the test.

Gievers also wrote that Orange County’s treatment of parent Michelle Rhea and her daughter was “particularly blatant, arbitrary and capricious,” because some students were allowed to move on after completing a portfolio, while Rhea’s daughter was denied a portfolio. But Gievers said she couldn’t issue an injunction about the girl because Rhea has moved her to a private school pending the outcome of the case.

And Gievers rejected arguments by the districts that the case should be broken up, with the Florida Department of Education fighting a lawsuit in Tallahassee while the districts face courts in their home counties.

Procedurally, the case is complicated because several parents have held their children out of school, enrolled them in private schools or begun home schooling them in response to the students being retained in third grade. In those cases, Gievers ruled, she couldn’t order the districts to do anything immediately because the students are not in public schools.

However, parts of at least some of those claims can still be heard at a later phase in the lawsuit.

Gievers brushed aside arguments from parents who clash with what some districts will accept as “portfolios,” an alternative to receiving the required grade on the Florida Standards Assessment. She said those claims would have to be heard by an administrative law judge first, because they concern a state rule.

A hearing concerning the Hernando County students, if the parents and the districts can’t agree on a resolution, is set for Monday afternoon.